Let’s apply all this law to the PSSA.
The PSSA was not specifically tailored to Manitoba’s financial situation. It was bought off the rack.
There is no evidence that less intrusive options were considered. There is no evidence that they ever considered any other options at all.
All the government did was say “hmmm, that law in Nova Scotia looks good, let’s go with that.”
All of the case law requires the government to at least consider whether less harmful, less drastic measures would be enough. And, it isn’t just less damaging, it has to be the least damaging measures possible.
All that implies that the government actually has to consider other options, and have evidence to show why those other options weren’t good enough.
My friend (Leonoff) argued that this is limited to other legislative options. But that is not so. The case law is clear that all other options are relevant, not just other ways to legislate.
Here, there is no evidence whatsoever that the Government of Manitoba considered any other alternatives at all, legislative or otherwise. No one testified about it. Nowhere in any of the Budget Speeches or other governmental communications did anyone refer to any other options.
There always one path and one path only – legislation. They borrowed from Nova Scotia in both strategy and content.
As we learned from the testimony of Kevin Rebeck, they had already drafted the PSSA even while they were stringing the Fiscal Working Group along. They allowed the unions to think that the all options were open, and everything was on the table, when all they were ever going to do was legislate. The Public Services Compensation Committee said legislation only, get it done, and get it done fast.
Nowhere is this clearer than comparing what took place on March 8 and March 9 of 2017. On March 8, the Public Services Compensation Committee met to consider the final draft of the PSSA. According to the Executive Summary prepared by Mr. Irving and Mr. Stevenson, everything was already prepared and in place. The next day, when the same two people met with Labour leaders, they were still saying – legislation is only one of the options.
To us, this is good evidence of a lack of good faith, good evidence that the government never intended to do anything except legislate. And, good evidence that the Fiscal Working Group was a sham throughout, from the first time it met on January 5, 2017 to the last.
This government never considered the possibility of bargaining for 0% wage increases. They wanted certainty and were determined to legislate them anyway.
(This reminds me of something. Why wouldn’t the government try to negotiate for 0% increase, when history has shown that it is certainly possible? Because, if they tried that at the table, they would have to have enough proof to convince the unions that 0% were necessary. But if you legislate, you don’t have to.
Problem is, though, if you legislate without evidence, then you end up in a court challenge where you look incompetent and foolish, as well as venal because you forced 0% wage increases without bothering to think of any good reasons for needing them.)
The government forced employers to follow the PSSA by threatening to reduce their funding, but did it in secret so that they wouldn’t have to take public responsibility.
In OPSEU case, the Ontario Court of Appeal said that the Government of Ontario was trying to “buy” reduced class sizes by reducing teachers’ wages. Here, the Government of Manitoba is trying to use public sector wage reductions to “pay” for tax breaks. As Dr. Beaulieu testified, this places an unfair burden on the public sector.
(Public sector employees get paid less so that everybody else can keep more.)
And there is no question that the PSSA significantly impairs collective bargaining. Substantial interference in collective bargaining doesn’t mean total elimination. It is not what is left over that matters, it is what is taken away. And when wages are off the table, the evidence shows that collective bargaining in the Province is remarkably constrained.
Furthermore, the sustainability savings in Section 14 aren’t collective bargaining. Unions must go cap in hand to ask for permission. The government (via the Treasury Board) holds all the cards.